Magullion v. Magee

241 Mass. 355 | Mass. | 1922

Crosby, J.

This is a bill in equity, brought by the trustees under the will of John R. Magullion against his surviving partner, to establish a trust in certain real estate numbered 6 Dover Street, in Boston, the record title to which stands in the name of the defendant. The case was referred to a master, together with a suit between the plaintiffs, as executors of the will of John R. Magullion, and the defendant, for an accounting. The master found that the real estate was not partnership property and a decree has been entered dismissing the bill. The case is before us on the first and second exceptions to the master’s report (the others having been waived), and on an appeal from a denial of a motion to recommit, and an appeal from a final decree. The evidence is not reported.

The first exception is based upon the objection that the master made no findings on the issues raised in the fifth paragraph of the bill and the answer thereto. He found that "Magee was a good business man and for the most part attended to the general management of the business.” This finding, together with the other findings, would seem to cover the issues in question, to enable the master to report the facts. "A master is not required to state every subsidiary circumstance which brings his mind to its ultimate determination as to the facts.” Smith v. Lloyd, 224 Mass. 173, 176.

The second exception is to the finding that the trustees "never asserted any claim to have any right, title or interest in the Dover Street property until this action was brought in 1917,” because it is inconsistent with the facts reported in the action of Magullion v. Magee, post, 360, tried with this action. The report in the present case and that in the suit by the executors deal at length with the relations of the partners. If there is any inconsistency in the findings, as claimed, it is immaterial in view of the conclusion which we have reached. The exceptions must be overruled.

The motion to recommit the report rested in the sound discretion of the court, and is final unless the denial of the motion was an abuse of judicial discretion, which does not appear.

The question remains whether, upon the findings made, the plaintiffs were entitled to a final decree that the real estate was partnership property. It adjoined the property on Tremont Street where the firm’s principal place of business was located, and the first floor and basement were used in connection with that business under a lease before the time it was purchased by the defendant, who paid therefor $7,500 and $200 taxes. The master states that the defendant told Magullion a day or two after he had acquired title that he had purchased the property and that “This purchase by Magee greatly disturbed Magullion when he learned of it, and he expressed his disappointment to Magee, Flynn and members of his own family. The evidence does not disclose that Magullion made any demands on Magee to give him any interest in the property, or that he offered to pay any part of the purchase price. Whatever chagrin or disappointment he may have suffered appears to have quickly passed, aqd the entirely friendly relations of the partners continued. I find Magee bought in expectation that this property would continue to be used by the partnership.” And further, that after-wards, and during the lifetime of Magullion, the partners agreed upon extensive alterations upon both the Dover Street and Tremont Street property, the latter being owned by Magullion; that these repairs were made and both properties continued to be used in the business; that the entire expense of the alterations and such fixtures as were added was $15,355.22, all of which was paid by the partnership and carried on their books as an asset in an account called “Alterations and Fixtures;” that former repairs and alterations on the Tremont Street building used by the firm were paid for by it and carried on the same account. And he concludes: “I find that during the life of Magullion he never questioned the legal right of Magee to pinchase this property as he did, and never asserted in any manner any interest in the property as belonging either to the partnership or himself. I find that neither of the trustees, plaintiffs herein, nor any beneficiaries under the trust, ever asserted any claim to have any right, title or interest in or to the Dover Street property until this action was brought, in March 1917, although the facts in regard to Magee’s purchase of it were known to Flynn from the first, and by the others after the hearings before the master in the former case, if not before.”

The master also found that after the alterations above referred to had been made, Magullion’s attorney presented to Magee for his signature an agreement relating to the party wall between the two properties, in which the Dover Street property was treated as belonging to the defendant; that in April, 1916, when the plaintiffs as trustees leased the Tremont Street property to the defendant, they inserted a provision in the lease by which the defendant agreed that if he sold, mortgaged or leased No. 6 Dover Street he would do so subject to the restriction and condition that for a period of fifteen years “the person holding title should not object to the granting of liquor licenses on the Magullion property.”

Upon these and other findings it cannot be said as matter of law that Magullion or the defendant ever intended that the Dover Street property should belong to the firm. It follows that the final decree dismissing the bill with costs must be affirmed.

So ordered.